Modesto Ivan Fonseca pleaded guilty to one count of possession with
intent to distribute a mixture containing methamphetamine. Based on the
quantity of actual methamphetamine involved, the Presentence Investigation
Report (PSR) recommended a total offense level of twenty-nine, pursuant to the
United States Sentencing Guidelines (USSG). Fonseca argued the district court
should grant a downward departure because, as a middleman, he could not have
reasonably foreseen the high purity of the drugs. The district court rejected his
request and sentenced Fonseca to 108 months' imprisonment, a sentence at the
low end of the applicable Guideline range. Fonseca appeals his sentence, arguing
the district court erroneously failed to recognize its discretion to grant the
downward departure. Because the district court did not unambiguously state it
lacked discretion to grant the requested downward departure, this court lacks
jurisdiction and dismisses the appeal.

II. Background

Fonseca was arrested for his role in a drug transaction between an
acquaintance and a third party, which was part of an undercover operation
undertaken by the Mesa County Drug Task Force. As part of the ongoing
investigation, an undercover officer reached an agreement with Fonseca's co-defendant, Devon
Powell, to purchase three ounces of methamphetamine.
Fonseca drove Powell to the parking lot where the transaction was to take place,
and Powell exchanged the three ounces of methamphetamine for the agreed-upon
amount in cash. Following the transaction, Powell returned to Fonseca's vehicle
and both were arrested as they attempted to leave the parking lot. In addition to
the three ounces sold to the undercover officer, police found another two ounces
of methamphetamine in a fast food container in Fonseca's car. Subsequent
testing of the drugs concluded the substance sold to the undercover officer
totaled 83.2 grams of methamphetamine mixture with a purity level of 89%. The
additional two ounces found in the car amounted to 55.5 grams with a purity
level of 87%. Based on these amounts, the total amount of pure
methamphetamine involved was 122.2 grams.(1)

Fonseca was indicted on one count of possession with intent to distribute
more than fifty but less than two hundred grams of a mixture containing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(viii). He
pleaded guilty to the charge pursuant to a plea agreement in which the
government agreed to recommend a sentence at the bottom of the applicable
Guideline range. The PSR concluded Fonseca's base offense level was thirty-two, based on a
quantity of 122.2 grams of actual methamphetamine involved in
the offense. USSG § 2D1.1(c)(4). The PSR then recommended a three-level
adjustment for acceptance of responsibility. The resulting total offense level of
twenty-nine, coupled with a criminal history category of III, produced a
Guideline range of 108 to 135 months.

Prior to sentencing, Fonseca filed a sentencing memorandum in which he
asked the court to sentence him based upon the offense level for the quantity of
methamphetamine mixture involved rather than the quantity of actual
methamphetamine.(2) Because the total
methamphetamine mixture amounted to
138.7 grams, such a calculation would reduce his base offense level from thirty-two to
twenty-six. See USSG § 2D1.1(c)(7). Fonseca argued the high purity
level of the drugs was not reasonably foreseeable to him because he was merely a
middleman in the transaction. He cited United States v. Mendoza, 121 F.3d 510,
513 (9th Cir. 1997), for the proposition that a district court has authority to
depart downward based on a defendant's lack of control or knowledge of the
purity of the drugs.

At the sentencing hearing, Fonseca again requested "an adjusted advisory
Guideline level" of twenty-six, based on the lack of foreseeability of the drug
purity. He asserted his role in the transaction was merely to obtain the drugs for
Powell from a third party and then to return the sale money to the original source
of the drugs. Given this limited role in the transaction, Fonseca claimed he could
not have foreseen the drugs he was delivering were more than eighty-five percent
pure. In response, the government argued a departure was not warranted because
the high price of the drugs made their high purity reasonably foreseeable to
Fonseca. The district court ultimately declined to grant a downward departure
and adopted the conclusions set forth in the PSR. It then sentenced Fonseca to
108 months' imprisonment, a sentence at the bottom of the Guideline range.

III. Analysis

On appeal, Fonseca argues the district court erroneously failed to recognize
it had discretion to grant a downward departure based on a defendant's lack of
knowledge of drug purity levels. He further contends the error was not harmless
because the district court may have granted the departure if it had known it had
the legal authority to do so. Because this court rejects Fonseca's necessary
premise that the court believed it did not have discretion to grant the departure on
the asserted grounds, it need not be decided whether such a conclusion would
have been error.

This court reviews sentences imposed after Booker according to the two-step
approach set forth in United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.
2006). First, this court determines whether the district court properly applied the
Sentencing Guidelines, reviewing its legal conclusions de novo and its factual
findings for clear error. Kristl, 437 F.3d at 1055. In calculating the proper
Guideline range, the district court is still required to consider and apply the
departure provisions in appropriate cases. United States v. Sierra-Castillo, 405
F.3d 932, 936 n.2 (10th Cir. 2005). A direct challenge to the district court's
denial of a downward departure is therefore treated as a challenge to the
preliminary application of the Guidelines under the first step of the Kristl
analysis. United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir.
2006). If
the Guidelines are properly applied, this court then reviews the ultimate sentence
imposed for reasonableness, applying a rebuttable presumption of reasonableness
for sentences within the properly calculated Guidelines range. Id.

Even after Booker, "[t]his court has no jurisdiction . . . to review a
district
court's discretionary decision to deny a motion for downward departure on the
ground that a defendant's circumstances do not warrant the departure."
Sierra-Castillo, 405 F.3d at 936. This court may review a denial of a downward
departure only if the denial is based on the sentencing court's interpretation of
the Guidelines as depriving it of the legal authority to grant the departure.
United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999). In making this
determination, the district court is presumed to recognize its discretion, unless it
unambiguously states it lacks discretion to grant the departure. Sierra-Castillo,
405 F.3d at 936. Ambiguous statements are treated "as though the judge was
aware of his or her legal authority to depart but chose instead, in an exercise of
discretion, not to depart." Id. (quotation omitted). While this court now has
jurisdiction to review a defendant's final sentence for reasonableness, it
nevertheless continues to lack jurisdiction to review the discretionary denial of a
downward departure. Chavez-Diaz, 444 F.3d at 1229.

Fonseca's argument on appeal is a narrow one. He challenges his sentence
only with respect to the district court's denial of a downward departure based on
his lack of knowledge of the drug purity levels. He presents no other challenges
to the calculation of the appropriate Guidelines range, and he does not argue the
ultimate sentence imposed was unreasonable.(3) Where the defendant declines to
challenge reasonableness and instead challenges only the denial of a downward
departure in applying the Guidelines, as Fonseca does here, the pre-Booker rules
still apply. See Sierra-Castillo, 405 F.3d at 936. Thus, this court has jurisdiction
over Fonseca's appeal only if the sentencing court unambiguously stated it did
not have discretion to grant the downward departure on the grounds urged by
Fonseca at sentencing. See id.

In this case, statements made by the district court at sentencing indicate it
rejected Fonseca's argument for a downward departure not because it believed it
had no authority to grant the departure, but because it determined a departure was
not warranted in this case. In response to Fonseca's argument that he could not
have foreseen the high purity of the drugs, the district court stated:

[W]hat [the facts] suggest . . . is that the defendant had a significant
role in getting these drugs. He also knew that he was getting drugs
probably that were pretty pure . . . . [A]bsent some evidence from a
witness who was involved in this, I have trouble buying your argument,
counsel. It just doesn't jibe. What you want, you want me to give him
a lower sentence, but this reason you're giving me doesn't make a lot
of sense to me.

This statement belies Fonseca's contention that his argument was rejected as a
matter of law. To the contrary, it suggests the district court considered the facts
of this particular case and simply rejected Fonseca's argument on the merits. By
noting evidence of Fonseca's ignorance was lacking, the court implicitly
recognized the possibility that the result may have been different if his argument
had been supported by credible evidence.(4)
Given Fonseca's "significant role" in
the offense, the district court found no reason to believe his unsubstantiated
claim he did not know the purity of the drugs. Based on this assessment of the
facts, the district court then determined Fonseca was not entitled to a downward
departure. Evaluating the propriety of such a discretionary determination is
beyond this court's jurisdiction. See United States v. Sims, 428 F.3d 945, 963
(10th Cir. 2005) ("Because the court clearly knew it had authority to depart on
these grounds but simply elected not to do so in this case, we cannot entertain
these issues on appeal.").

The district court's recognition of its legal authority to grant the requested
departure is further demonstrated by the absence of any challenge to this
authority by the government or the court. Aside from a brief reference in
Fonseca's sentencing memorandum, the issue was never raised or discussed.
Indeed, the government's argument at sentencing recognized the practice of other
judges in reducing sentences based on lack of foreseeability of drug purity.
Rather than arguing this point, however, the government instead focused on the
facts of the case, contending the high price of the drugs gave Fonseca reason to
be aware of their high purity. Likewise, the court was particularly concerned
with the facts, finding it relevant whether the drug purity was in fact reasonably
foreseeable under these circumstances. Thus, the record supports the conclusion
that all parties involved, including the court, assumed the authority of the court
to grant the departure if it determined one was warranted.

In support of his argument that the district court failed to recognize its
discretion to grant a downward departure, Fonseca directs this court's attention to
two statements made by the district court at sentencing. The district court first
asked:

My question is if somebody's acquiring illegal drugs . . . aren't they
stuck with the consequences of what they acquire? I mean . . . if it's
purer rather than less pure, aren't they stuck with those
consequences? I'm trying to understand why I should give your
client a break because he didn't realize the drugs he procured would
be as pure as they turned out to be.

Later in the sentencing hearing, the court again explained its position regarding
Fonseca's argument for a downward departure:

It would seem to me if someone is approached by somebody to get
illegal drugs, they say, okay, I know where I can get illegal drugs,
they then go get the illegal drugs and sell the illegal drugs . . . aren't
they stuck with the reasonable conclusions of their actions, which
would include that the actual drugs when tested turn out to be very
pure, which drive up the Guideline levels under the advisory
Guidelines?

Fonseca argues the use of the phrases "stuck with the consequences" and "stuck
with the reasonable conclusions of their actions" indicates a perceived lack of
legal authority to grant the requested departure.

Contrary to Fonseca's assertions, however, neither of these statements
constitutes an unambiguous statement that the court lacks legal authority to grant
the departure. Rather, they show only the district court's belief that the alleged
lack of foreseeability under circumstances such as these does not justify a
downward departure. Nothing in these statements indicates an understanding that
the court was not legally authorized to grant a downward departure if it had
found one to be warranted. In fact, the court's first question explicitly asks why
the downward departure should be granted to this particular defendant. If the
district court believed it had no legal authority to grant the departure in any case,
the specific rationale for giving Fonseca "a break" would be irrelevant.

At most, the statements made by the district court are ambiguous. As noted
above, ambiguous statements regarding the authority of the district court to
depart from the Guidelines are interpreted as if the court were aware of the
authority to depart. Fortier, 180 F.3d at 1231. The statements in this case can
easily be distinguished from those made by the district court in Mendoza, the case
on which Fonseca relies for the proposition that a sentencing court has authority
to depart based on the defendant's lack of knowledge of drug purity. In that
case, the district court stated, "[T]o make it clear, the Court believes that she has
no discretion to depart downward on the argument counsel has made." Mendoza,
121 F.3d at 512. Likewise, the district court in Sims clearly explained, "The
Court views this fact [that the defendant's offense conduct involves a serious
threat of violence] as disqualifying it from permitting a reduction based on
diminished capacity." Sims, 428 F.3d at 963. These are the kind of unambiguous
statements required by this court and lacking in this case.(5) Because the district
court did not unambiguously state it lacked the discretion to grant the requested
downward departure, this court has no jurisdiction to review the denial of this
departure.

IV. Conclusion

For the foregoing reasons, this court dismisses the
appeal of the sentence
imposed by the district court.

FOOTNOTESClick footnote number to return to corresponding location in the text.

1. The stipulation of facts in the plea agreement
erroneously calculates the
total amount of actual methamphetamine attributed to the additional two ounces
of methamphetamine mixture as 54.2 grams. A proper calculation would produce
a total of 48.285 grams, 87% of 55.5 grams. This error was corrected in the
Presentence Investigation Report, which properly calculated the total amount of
actual methamphetamine involved in both transactions as 122.2 grams. The
miscalculation, however, is immaterial because both calculations produce the
same base offense level under USSG § 2D1.1.

2. Fonseca also argued he should receive a
two-level downward adjustment
because he was only a minor participant in the offense. See USSG §§
3B1.2(b),
2D1.1(a)(3). At sentencing, however, he conceded this adjustment did not apply.

3. This court notes it would have jurisdiction to
review Fonseca's challenge
if his argument had instead been framed in terms of a challenge to the
reasonableness of his sentence. See United States v. Chavez-Diaz, 444 F.3d
1223, 1228-29 (10th Cir. 2006) (noting jurisdiction to review district court's
refusal to depart downward as part of a challenge to the reasonableness of the
sentence). While this may initially appear to be a formalistic distinction,
Fonseca's reply brief suggests he intentionally narrowed his claim in this manner
to avoid the presumption of reasonableness set forth in United States v. Kristl,
437 F.3d 1050, 1055 (10th Cir. 2006). See Aplt. Reply Br. at 1-2 (characterizing
the government's brief as "designed to shunt Mr. Fonseca's case into
reasonableness testing under Kristl, where Fonseca must face virtually
insurmountable presumptions and jurisdictional hurdles on his way to relief").

4. Although Fonseca argues his statement at
sentencing supports his claimed
ignorance as to drug purity, the weight of the evidence is irrelevant to the
question of whether the district court believed it had the legal authority to depart.
Even if there was sufficient evidence to support a downward departure, the
district court was not required to grant one.

5. In an effort to avoid the rule that an
unambiguous statement is required,
Fonseca essentially argues that because the evidence supported his claimed lack
of knowledge, the district court's denial of the downward departure "can only be
assumed" to be based on its perceived lack of discretion. Such an assumption,
however, would directly contradict this circuit's precedent requiring an
unambiguous statement. While this court agrees with Fonseca that "no particular
shibboleth" is required, it nevertheless requires defendants to point to some
statements by the district court clearly evincing a perceived lack of authority.